Law Web: Whether a party can exercise the right of pre-emption for an indefinite number of transactions?

We suppose that the aforesaid answers the dilemma, i.e. whether the

right of pre-emption can be enforced for an indefinite number of

transactions or it is exercisable only the first time. We opine that it is only

exercisable for the first time when the cause of such a right arises, in a

situation where the plaintiff-pre-emptor chooses to waive such right after

the 1966 Act becoming operational. Section 9 of the said Act operates as a

bar on his exercising such right on a subsequent transaction relating to the

same immovable property. We also wonder what really remains of this right

of pre-emption after so many years in the facts of this case when the

purchaser has been enjoying it for more than four decades!

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1442 OF 2016

RAGHUNATH (D) BY LRS. Vs RADHA MOHAN (D) THR. LRS

Author: SANJAY KISHAN KAUL, J.

Dated: OCTOBER 13, 2020.

1. The singular question this Court had framed for consideration in this

appeal was whether the limitation shall commence from the first sale deed

after coming into force of the Rajasthan Pre-Emption Act, 1966 or from

any other subsequent sale on the basis of Article 97 of the Limitation Act,

1963. This question arises in this proceeding in a situation where the

original plaintiff sought to enforce such right after three sale transactions

had taken place in the past involving the subject immovable property in the

years 1945, 1946 and 1966. The last transaction was effected on 5th

November that year, after the 1966 Act had become operational. The

factum of the plaintiff’s entitlement otherwise claim right of pre-emption in

terms of Section 6 of the 1966 Act is not in dispute in this proceeding. In

the suit out of which this appeal arises, the plaintiff’s suit for pre-emption

over a transaction effected on 21st January 1974 was resisted on the ground

of being barred by limitation.

2. In order to determine the aforesaid question of law framed by this

Court in terms of the order dated 05.01.2016, it is necessary to discuss the

nature of the right of pre-emption. In this behalf, we had discussed the

right of pre-emption in a recent judgment in Barasat Eye Hospital & Ors. v. Kaustabh Mondal (2019) SCC Online SC 1351. The said judgment, authored by one of us (Sanjay Kishan Kaul, J.), in its initial paragraph itself discusses this aspect and it

would suffice to quote the same.

“1. The right of pre-emption holds its origination to the advent

of the Mohammedan rule, based on customs which came to be

accepted in various courts largely located in the north of India. This

law is stated to be largely absent in the south of India on account of

the fact that it never formed a part of Hindu law in respect of

property. However, this law came to be incorporated in various

statutes, both, prior to the Constitution of India (for short ‘the

Constitution’) coming into force, and even post that.

Bhau Ram v. Baij Nath Singh, AIR 1962 SC 1476 The

constitutional validity of such laws of pre-emption came to be

debated before the Constitution Bench of this Court, in

Bhau Ram, (supra).

There are different views expressed by the members of the

Constitution Bench of five Judges, and also dependent on the various

State legislations in this regard. Even though there were views

expressed that this right of pre-emption is opposed to the principles

of justice, equity and good conscience, it was felt that the

reasonableness of these statutes has to be appreciated in the context

of a society where there were certain privileged classes holding land

and, thus, there may have been utility in allowing persons to prevent

a stranger from acquiring property in an area which has been

populated by a particular fraternity or class of people. This aspect

was sought to be balanced with the constitutional scheme,

prohibiting discrimination against citizens on the grounds of only

religion, race, caste, sex, place of birth or any of them, under Article

15 of the Constitution, and the guarantees given to every citizen to

acquire, hold and dispose of property, subject only to the test of

reasonable restriction and the interest of general public.”

The judicial approach adopted towards this right of pre-emption was

thereafter discussed in the said judgment in the following terms:

“10. In order to appreciate the aforesaid provisions relating

to the right of pre-emption, it would be appropriate to refer to

an extremely lucid judgment of this Court by Justice K.

Subbarao (as he then was), setting forth the contours of the

right of pre-emption in Bishan Singh v. Khazan Singh

AIR 1958 SC 838, in a

four Judge Bench judgement. The Bench proceeded to discuss

the view of different Courts on this right of preemption, as

found in the following:

a. Plowden, J. in Dhani Nath v. Budhu, 136 P.R. 1894

b. Mahmood, J. in Gobind Dayal v. Inayatullah, (1885) ILR 7 All 775, 809

c. Mool Chand v. Ganga Jal, (1930) ILR 11 Lahore (F.B.) 258, 273

11. In view of the aforesaid elucidation, it was opined that

the preemptor has two rights: first, the inherent or primary

right, i.e., right for the offer of a thing about to be sold; and

second, the secondary or remedial right to follow the thing

sold. The secondary right of preemption is simply a right of

substitution, in place of an original vendee and the pre-emptor

is bound to show not only that his right is as good as that of

that vendee, but that it is superior to that of the vendee. Such

superior right has to subsist at the time when the pre-emptor

exercises his right. The position is thereafter summarized in

the following terms:

“11. …..(1) The right of pre-emption is not a right to the

thing sold but a right to the offer of a thing about to be

sold. This right is called the primary or inherent right. (2)

The pre-emptor has a secondary right or a remedial right to

follow the thing sold. (3) It is a right of substitution but not

of re-purchase i. e., the pre-emptor takes the entire bargain

and steps into the shoes of the original vendee. (4) It is a

right to acquire the whole of the property sold and not a

share of the property sold. (5) Preference being the essence

of the right, the plaintiff must have a superior right to that

of the vendee or the person substituted in his place. (6) The

right being a very weak right, it can be defeated by all

legitimate methods, such as the vendee allowing the

claimant of a superior or equal right being substituted in his

place.”

On having set down the contours of the aforesaid right, we turn to the facts

of the present case.

Facts:

3. The Rajasthan Pre-Emption Act, 1966 (hereinafter referred to as ‘the

Act’) was brought into force on 1.2.1966. In view of the rights conferred

under the Act, a suit was filed by the predecessor-in-interest of respondent

No.1 seeking a decree of pre-emption against the predecessor-in-interest of

the appellant herein and respondent Nos. 4 to 6 herein, on 10.1.1974, which

was numbered as Civil Suit No. 40/1975. The property in question is

situated in a building bearing AMC No. XV/290 situated in Kayasth

Mohalla, Ajmer (‘suit schedule property’) and is predicated on account of

having a common portion in the said property. The plaint stated that

respondents 5 and 6 herein (original defendants 3 and 4) were owners and

in possession of the part of the property which was sold to respondent No.

4 herein (the original defendant No. 2), vide sale deed dated 10.01.1974 for a consideration of Rs. 4000/-. respondent No. 4 further sold this property

to the appellant herein (original defendant No.1 being the predecessor-ininterest)

on 21.01.1974 once again for the same consideration. The other

facts stated in the plaint are not required to be gone into nor pleaded,

except that there is an allegation that the two portions were part and parcel

of the same house having main entrance, lavatory and staircase in common

and that no notice, as provided for under Section 8 of the Act, had been

served, which mandates a notice to pre-emptors (forming part of the

procedure as set out in Chapter III of the Act). The suit was resisted. The

sale of the property as per the two sale deeds was not disputed. The plea

was, however, raised that there were two separate lockable premises and as

such no right of pre-emption accrued in favour of the original plaintiff.

Once again, it is not necessary to go into other defences for adjudication of

the present matter. It may, however, be noted that the written statement

stated that yet another sale agreement was entered into on 25.10.1974 and

the purchaser had not been made a party to the suit.

4. The Trial Court framed as many as eight issues including the plea of

bar of limitation. The suit was decreed in terms of the judgment dated

30.6.1977, inter alia finding that the suit had been filed within the period of limitation of one year. An appeal was preferred against this order and

during the pendency of the appeal an application was filed to amend the

written statement inter alia raising the plea that there were even earlier sale

deeds of 1945, 1946 and 1966 where the respondents 5 and 6 herein had

purchased the property vide sale deed dated 5.11.1966. The earlier sale

deeds not having been challenged, the right of pre-emption could not be

exercised and was barred by time. This resulted in four additional issues

being framed arising from the plea of limitation and the matter was

remitted to the Trial Court in terms of the judgment dated 22.5.1987 of the

first appellate Court.

5. The Trial Court gave its consideration on the additional issues and

took note of the fact that the earlier two sale deeds were even prior to the

coming into force of the said Act. The court, however, noticed that even

prior to the coming into force of the said Act, laws of pre-emption did exist

in Ajmer. The sale deed dated 5.11.1966 came into existence after the said

Act came into force. It was opined by judgment dated 1.2.1988 that

without challenging that sale deed, the suit would not be maintainable and

would be barred by limitation relying upon the judgment of the Assam

High Court in Kutina Bibi and another vs. Baikuntha Chandra Dutta and others 8 AIR 1961 Assam 1

6. The first appellate Court once again considered this judgment of the

Trial Court in Civil Appeal No.129/1985 on the additional issues decided in

terms of that judgment. The appellate court, in terms of the judgment dated

30.03.1989, agreed with the finding of the Trial Court on the ratio of

Kutina Bibi (supra).

7. The matter was thereafter taken upto the Rajasthan High Court vide

S.B.C.S. Appeal No. 65/1989. The High Court noticed that the only

question before it was on the point of limitation as per the provisions of

Article 97 of the Limitation Act. 1963. The High Court in terms of the

impugned judgment dated 29.06.2009 opined that the one year limitation

period is to run from the date of registration of the sale deed or the date

when physical possession of the property was given; and the sale deed

would be the sale deed in question. The High Court negated the plea that

the earlier sale deeds would have to be assailed and concluded that each

sale of such property gives a fresh cause of action. The suit was found to

have been filed within time and the matter was remitted back on merits to

be decided by the first appellate Court. In the Special Leave Petition filed,

notice was issued on 9.10.2009 and interim stay of the impugned order was

directed. Leave was granted on 12.2.2016 and the question of law was

framed on 05.01.2016.

Rival Contentions:

8. The arguments advanced by Mr. Irshad Ahmad, learned counsel for

the appellant is on dual contours. The first argument was based on the

policy behind the right of pre-emption, i.e. that no stranger should be

allowed to thrust himself upon the co-sharer in a property against their will

and to prevent apprehended inconvenience to the co-sharer. In that context,

it was urged that the admitted position was that the predecessor-in-interest

of the appellant herein was a distant relative of the predecessor-in-interest

of respondent No.1 herein and this fact had been admitted by the original

plaintiff as also by the son of Manna Lal (the executor of the sale deed of

1946) in their depositions. The second plea advanced was that if a plaintiff

waived his right of pre-emption by conduct, no such right is available on a

subsequent sale of the same property and the plaintiff is estopped from

claiming any right of pre-emption of subsequent sale.

9. In support of their contention, learned counsel referred to the

following judgments:

(a) Prahlad Kumar vs. Kishan Chand & Ors.9

This judgment of the Rajasthan High Court, while rejecting the right of

pre-emption, based it on two aspects. The first was a factual one that it was

not a case of sharing a common property. The relevant portion is the

second aspect where it was held even if the right is presumed to have been

established, though not established in that case, the plaintiff was estopped

from claiming his right of pre-emption as he had waived his right when the

property was sold at an earlier date and pre-emption was not claimed then.

(b) Mangti Ram vs. Onkar Sahai10

In this case, the right of pre-emption was held to have been given up on

account of an earlier compromise deed to which the plaintiff had been a

party.

This judgment once again dealt with the plea of pre-emption against a

subsequent sale, where vide an earlier sale deed of 1950, the plaintiff-

9 2009 (3) RLW 2441

10 (1994) 1 RLW 55

11 Supra

cosharer’s share had been sold by her son and thus, it was held that not

having assailed the earlier sale deed, the right of pre-emption could not be

claimed against the subsequent sale.

(d) Ghulam Jilani vs. Hassan Khan & Ors.12

There was an earlier sale deed and a subsequent sale deed. At the stage of

the initial sale deed, the cosharer did not object. At the stage of the second

sale deed, the cosharer sought to object. The court debated the issue of

competing rights of the cosharer and the subsequent buyer in pursuance to

the first sale deed. It was opined, while agreeing with the lower court, that

the plaintiff’s suit was barred by time, having been instituted more than a

year after the earlier sale which alone he was entitled to impugn.

(e) Ghanshyam vs. Chand Bihari & Ors.13

The factual matrix shows there were many cosharers. Two of the cosharers

transferred their rights to a third party. One by sale and one by gift. Third

party, in turn, sought to transfer to another party. It is at that stage, one of

the cosharers claimed a right of pre-emption. It was found on facts that

when the said third party sought to transfer his right, plaintiff never showed

willingness to purchase the same, as they were not having sufficient means.

12 PLR 1905 (Vol.VI) 338

13 (2008) 2 RLW (Rev) 1011

It was opined that the plaintiff’s father never tried to assert his right in the

matter of purchasing that portion earlier and subsequently also, during his

lifetime, he never tried to enforce his right of pre-emption. As such, right of

pre-emption was said to have been waived by conduct.

(f) Rukmani Devi (Smt.) vs. Prabhu Narayan & Ors.14

The pre-emption right under Section 6 of the Act was discussed with an

explanation that the right of pre-emption is a weak right and thus if a

plaintiff pre-emptor waives or gives up his right without raising any

objection to the sale in favour of the third party, the court should not allow

substitution in the sale deed at the instance of such plaintiff pre-emptor,

who has already given up his right.

10. On the other hand, Ms. Christi Jain, learned counsel for the

respondent sought to support the impugned judgment on the plea that the

limitation to enforce a right of pre-emption under the Act is governed by

Article 97 of the Limitation Act, 1963 read with Section 21 of theAct.

Thus, each sale deed is a separate cause of action. On a reading of Section

8 of the said Act, it was contended that the seller is required to inform all

persons as to the price he is proposing to sell at and thus the language of

14 (2007) 4 RLW 2882

the provision is clear that it applies to all such incidents of sale. Thus, it

was pleaded that it cannot be said that if such a right is not exercised, it

would allow foreclosure for any subsequent sale, since there is no provision

in the said Act, prohibiting the right of pre-emption if the right is not

exercised. It was also contended that the question of waiver is set out in

Section 9 of the said Act, which does not provide for an eventuality that the

right of pre-emption would not be applicable for a subsequent sale. The

last aspect argued was that this right is based on substitution in place of the

vendee on payment of the price and it does not challenge the sale but seeks

substitution of the plaintiff in place of the vendee. There was, thus, no

need to challenge the earlier sales and not challenging the earlier sales

would not amount to waiver.

11. A reference was made to the following judgments:

(i) Bishan Singh & Ors. vs. Khazan Singh & Anr.15

The reference to the aforesaid judgment has been made in the context of

the observations of Mahmood, J. in Gobind Dayal case (supra) referred to

above that it is in relation to the right of substitution.

(ii) Barasat Eye Hospital & Ors. vs. Kaustabh Mondal16

15 AIR 1958 SC 838

16 supra

This judgment has been relied upon again on the same aforesaid

principle of right of substitution.

The view we adopt:

12. We have given our thoughtful consideration to the aforesaid issue

and in order to determine the same, we had, at the inception itself, set out

the judgment in Barasat Eye Hospital case (supra). We have, thus, referred

to the earlier judicial view in para 10 of the judgment extracted aforesaid.

The historical perspective of the right of pre-emption shows that it owes its

originination to the advent of the Mohammedan rule, based on customs,

which came to be accepted in various courts largely located in the north of

India. The pre-emptor has been held by the judicial pronouncements to

have two rights. Firstly, the inherent or primary right, which is the right to

the offer of a thing about to be sold and the secondary or remedial right to

follow the thing sold. It is a secondary right, which is simply a right of

substitution in place of the original vendee. The pre-emptor is bound to

show that he not only has a right as good as that of the vendee, but it is

superior to that of the vendee; And that too at the time when the pre-emptor

exercises his right. In our view, it is relevant to note this observation and

we once again emphasise that the right is a “very weak right” and is, thus,

capable of being defeated by all legitimate methods including the claim of

superior or equal right.

13. We have to examine the legal question before us in terms of the

aforesaid principles. We may notice the observation in the Ghanshyam case

(supra) which deals with the scenario where at the first instance the right

was not exercised apparently on account of lack of financial means and that

was held to be no ground to permit exercise of that right at the second

stage. The consistent view taken by the Rajasthan High Court, as reflected

in not only Ghanshyam case (supra) but also in Rukmani Devi (supra) and

Prahlad Kumar (supra) has been that the right of substitution is capable of

being invoked only at the first instance and does not continue to

substitution is capable of being invoked only at the first instance and does

not continue to permeate for an indefinite period of time for each sale

transaction. In the case of Ghanshyam (supra), finding of the High Court

was that the plaintiffs claiming pre-emption had waived their rights. In the

case of Rukmani Devi (supra), where the plaintiff raised the plea of preemption

on second sale transaction, evidence was led by the defendant that

the same plaintiff had earlier refused to purchase the subject property and

had on the other hand participated in the sale process. In the case of

Prahlad Kumar (supra), it was found that the plaintiff himself had waived

his right of pre-emption in respect of an earlier sale transaction involving

the same property. Thus, to this extent, the view taken in the impugned

order seems to charter a new course. The view of the Assam High Court in

Kutina Bibi (supra) was consistently followed by the Rajasthan High

Court.

14. In order to now appreciate the controversy, as there appears to be no

other view of this Court on this aspect, we would first turn to the said Act

itself. Right to pre-emption is defined in Section 3 of the Act as under:

“Section 3: “Right of pre-emption” defined

The “right of pre-emption” is the right accruing under

section 4 of this Act, upon a transfer of any immovable

property, to acquire such property and to be substituted

as the transferee thereof in place of and in preference to

the original transferee and “pre-emptor” means a person

having a right of pre-emption.”

Section 6 sets out the right of persons to whom the right pre-emption

accrues and it would suffice to reproduce sub-section (1) as the other subsections

deal with different classes of persons having such right.

“Section 6: Persons to whom right of pre-emption

accrues

(1) Subject to the other provisions of this Act, the right

of pre-emption in respect of any immovable property

transferred shall accrue to, and vest in, the following

classes of persons, namely:--

(i) co-sharers of or partners in the property transferred,

(ii) owners of other immovable property with a staircase

or an entrance or other right or amenity common to

such other property and the property transferred, and

(iii) owners of property servient or dominant to the

property transferred.”

Chapter III sets out the procedure for the exercise of the right of preemption.

Section 8 under the said Chapter mandates issuance of notice.

“Section 8: Notice to pre-emptors

(1) When any person proposes to sell, or to foreclose the

right to redeem, any immovable property, in respect of

which any persons have a right of pre-emption, he shall

give notice to all such persona as to the price at which he

is proposing so to sell or as to the amount due in respect

of the mortgage proposed to be foreclosed, as the case

may be.

(2) Such notice shall be given through the civil court,

within the local limits of whose jurisdiction the property

concerned is situated shall clearly describe such

property, shall state the name and other particulars of the

purchaser or the mortgagee and shall be served in the

manner prescribed for service of summons in civil suits.”

The limitation for exercise of the aforesaid right is stipulated in Section 21,

which reads as under:

“Section 21: Special provision for limitation

(1) Subject to the provisions contained in the proviso to

sub-section (1) of section 5, the period of limitation, in

any case not provided for by article 97 of the First

Schedule to the Limitation Act, 1963 (Central Act 36 of

1963), for a suit to enforce the right of pre-emption

under this Act shall, notwithstanding anything contained

in article 113 of the said schedule of the said Act, be one

year from the date on which,--

(a) in the case of a sale made without a registered saledeed,

the purchaser takes under the sale physical

possession of any part of the property sold, and

(b) in the case of a foreclosure, the final decree for

foreclosure is passed.

(2) The period of limitation for a suit to enforce a right

of pre-emption which has accrued before the

commencement of this Act shall, notwithstanding

anything contained in the said Limitation Act, in no case

exceed one year from the commencement of this Act.”

15. In view of the fact that since Section 21 in turn refers to Article 97 of

the First Schedule of the Limitation Act, 1963 it would be appropriate to set

forth the same as under.

97. To enforce a right

of pre-emption

whether the right

is founded on law

or general usage

or on special

contract.

One

year.

When the purchaser takes under

the sale sought to be impeached,

physical possession of the whole

or part of the property sold, or,

where the subject-matter of the

sale does not admit of physical

possession of the whole or part of

the property, when the instrument

of sale is registered.

16. The question has to be, thus, analysed in the context of a conjoint

reading of Section 21 of the said Act and Article 97 of the First Schedule to

the Limitation Act, 1963. The stipulation in Section 21 is that the right of

pre-emption has to be exercised, in case of a sale, within one year from the

date of sale and if the sale is not by a registered deed, on the purchaser

taking the physical possession of any part of the property sold. Since the

period has to be as per Article 97, the wordings of the Article show that it is

one year from the date when the sale is registered (in case such registration

takes place as is in the present case). It is this expression, which is sought

to be construed by the respondent No. 1 as well as by the High Court to

mean that it is a recurring right for every sale. The loss of right of preemption

on transfer has been defined under Section 9 of the said Act as

under:

“Section 9: Loss of right of pre-emption on transfer

Any person having a right of pre-emption in respect of

any immovable property proposed to be sold shall lose

such, right unless within two months from the date of

the service of such notice, he or his agent pays or

tenders the price specified in the notice given under

section 8 to the person so proposing to sell:

Provided that the right of pre-emption shall not be so

lost if the immovable property in question is actually

sold for an amount smaller than that mentioned in the

notice or to a person not mentioned in the notice as

purchaser.”

17. A reading of the Section shows that the loss is only occasioned,

when, within two months from the date of service of the notice, the price is

not tendered. However, that is the loss of the right, vis-à-vis the transaction

in question. The moot point is whether such a right of pre-emption is a

recurring right, i.e. every time the property is sold, the right would rearise,

in a case the pre-empting plaintiff himself has chosen not to exercise such

right over the subject immovable property when sold to another purchaser

earlier.

18. In our view, it would not be appropriate or permissible to adopt legal

reasoning making such a weak right, some kind of a right in perpetuity

arising to a plaintiff every time there is a subsequent transaction or sale

once the plaintiff has waived his right or pre-emption over the subject

immovable property. The loss of right mandated under Section 9 of the Act

is absolute. A plain reading of the said provision does not reveal that such

right can re-arise to the person who waives his right of pre-emption in an

earlier transaction. To do so would mean that a person, whether not having

the means or for any other reason, does not exercise the right of preemption

and yet he, even after decades, can exercise such a right. This

would create, if one may say, some sort of a cloud on a title and uncertainty

as a subsequent purchaser would not know, when he wants to sell the

property, whether he can complete the transaction or not or whether a cosharer

will jump into the scene. This is not contemplated in the 1966 Act.

This is bound to have an effect on the price offered by a purchaser at that

time because he would have an impression of uncertainty about the

proposed transaction.

19. We are in agreement with the consistent view taken in the judgments

earlier of the Rajasthan High Court. So far as the case of Kutina Bibi

(supra) is concerned, the factual basis of that decision does not fit with the

legal controversy involved in this proceeding. In that case, by a previous

transaction the entire land had been sold. It was held in that perspective, that the plaintiff’s right as a co-sharer had become disputed in absence of

challenge to the previous transaction. We are of opinion that such a right is

available once - whether to take it or leave it to a person having a right of

pre-emption. If such person finds it is not worth once, it is not an open right

available for all times to come to that person. The aforesaid being the

position, this would itself be an impediment in exercise of the right of preemption

in a subsequent transaction. This is so since, we find the right of

waiver under section 9 of the said Act is relatable to the transaction and

also the person. These provisions may not impede the right of pre-emption

in that particular transaction by a particular pre-emptor and the factum of

not having exercised such a right to an earlier transaction would amount to

the surrender of the right of substitution to such intended pre-emptor.

20. The judgments referred to by the respondent of Bishan Singh (supra)

and Barasat Eye Hospital (supra) are only for the proposition that the right

of pre-emption is a right of substitution – no doubt exists over this

proposition. The question is whether this right of substitution can be

exercised recurringly or only once. Our answer to the query is ‘only once’.

21. We may also notice another judgment of this Court in Indira Bai vs. Nand Kishore (1990) 4 SCC 668. Once again in relation to the said Act (it appears that there is a frequent exercise of this right in Rajasthan apart from West Bengal & Bihar!) The question which was framed for decision in the case was:

“Is estoppel a good defence to ‘archaic’ right of preemption

which is a ‘weak right’ and can be defeated by

any ‘legitimate’ method?”

In the aforesaid context, in para 5, it has been observed that the Act does not debar the pre-emptor from giving up his right. Rather in case of its non-exercise within two months, may be for the financial reasons, the right stands extinguished. “It does not pass on to anyone”. It was further observed, “No social disturbance is caused. It settles in purchaser. Giving up such right, expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy.” These observations, once again, in our view, are based on the right being weak.

Conclusion:

22. We suppose that the aforesaid answers the dilemma, i.e. whether the